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Don’t shoot the messenger: Internet middlemen on the hook for actions of illegal website operators

Internet Service Providers could find themselves incurring substantial expense in protecting the copyright interests of others. Websites that exist beneath the radar of detection and infringe the copyright of others such as those that offer unlawful music downloads and streaming are likely escape scot free while ISPs are left to pick up the bill.

A recent opinion from Advocate General Cruz Villalon in the Austrian case of UPC Telekabel Wien GmbH (“UPC”) v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH (“Constantin”) has provided further guidance for those seeking blocking-order injunctions against bodies who infringe their copyright. The case was referred to the Advocate General by the Austrian Supreme Court and concerns the website “kino.to” which allows its users to download and stream films without the consent of the film copyright holder (in this case, Constantin). The operators of such illegal websites are typically very difficult, if not impossible to trace. Copyright holders are then forced to look elsewhere for a remedy and in this case they looked no further than the internet service provider, UPC.

Before finding its way to the Advocate General’s desk, the case had already been considered at first instance and then again in the Austrian Appeal Court. On both occasions an interim injunction was granted against UPC despite it having no direct legal relationship with ‘kino.to’. The injunctions were granted on the basis that UPC is an intermediary insofar as it allows its users to access kino.to which in turn infringes the copyright of Constantin.

There was some disagreement between the Austrian court of first instance and the appellate court as to whether the terms of such an injunction should be specific (such as DNS or IP blocks) or general. There was also some concern that in blocking an IP address, other perfectly lawful sites which shared that IP address would also be blocked and users prevented from accessing lawful websites.

In looking at this issue the Advocate-General considered that an order of a general nature was not consistent with EU law. Such an order would need to contain specific directions as to the measures to be taken in order to comply with the spirit and intention of the various directives and other legislation in this area. The Advocate-General noted the requirement for a balance to be struck between the rights of copyright holders not to have their copyright infringed and the rights of the ISP. Further he noted that the specifics of this balancing exercise would need to be carried out by the national courts.

The one chink of light for ISPs in the opinion was the Advocate-General’s consideration of a “reasonable steps” defence whereby an ISP could avoid liability for breach of a blocking order by showing that it had taken all reasonable steps to comply.

The Opinion of the Advocate General is not binding on the CJEU and the final judgement in this matter is awaited, however, given the strong indication to national courts in relation to what is considered proportionate, it is more than likely that the opinion will form the basis of the forthcoming judgment.

Simon Halberstam